Misconduct after hours

The general rule is that an employee’s actions outside the working environment and after hours is not the employer’s concern and may the employer not institute disciplinary action against an employee for acts of misconduct committed after hours. The exceptions to the general rule are instances where the employer can prove that the employee has brought the name of the business in disrepute, or where the employee’s conduct has a sufficient connection with the business of the employer.

The position of the employee in the company will also be an important factor when considering disciplinary action.

The nature of the offence also determines whether disciplinary action should be implemented or not.

If an employee is dishonest on their home loan application or a vehicle finance application, the employer will not be entitled to take disciplinary action.  If the employee however commits fraud by altering a payslip to inflate his/her income, the actions of the employee might justify a dismissal.  It is of utmost importance to preserve the trust relationship between an employer and an employee.

It has been held by our courts that the link between the employee’s off-duty misconduct and the employer’s business exists where the employee’s conduct has a detrimental or intolerable effect on the efficiency, profitability or continuity of business of the employer.

A variety of factors should be considered in matters where employees commit misconduct outside the working environment.  The employer should consider each matter upon its merits and discipline must be applied consistently.

The LWO can provide assistance where employers need to determine whether disciplinary action is justifiable for misconduct outside of the workplace.  Contact the LWO for more information and/or advice at 0861 101 828.